Six states are facing federal lawsuits and threats of litigation from the ultra-conservative nonprofit Judicial Watch that could jeopardize the integrity of upcoming primary and general elections.
The suits claim that states are not properly maintaining voter rolls as required by federal law, and raise the specter of voter fraud, arguing that improper maintenance could leave the door open to “dirty elections.”
Judicial Watch, which focuses on the courts and is funded primarily by large grants from conservative foundations, is suing Pennsylvania’s chief election official, along with county legislators and election officials in three of the state’s six counties with the most registered voters. Pennsylvania was critical to Donald Trump’s win in 2016. He won by less than 1 percentage point, losing only 11 counties, including the three suburban Philadelphia counties being sued by Judicial Watch. It was the first time Pennsylvania went red since 1988. Democrats almost certainly need to win the state — where former Vice President Joe Biden was born, and where his campaign is headquartered — to take back the White House.
The group has filed similar suits in North Carolina and Maryland. The Pennsylvania lawsuit follows notices Judicial Watch sent to 19 counties in Pennsylvania, California, Virginia, Colorado, and Kentucky last December, threatening lawsuits unless they removed ineligible voters from rolls. One Pennsylvania county buckled under pressure and made changes to its voter rolls, while the three that are currently being sued did not. Counties in California and Kentucky, facing pressure from Judicial Watch, last year started the process to remove close to 2 million voters from their rolls.
“Those excessive practices have been again and again shown to disproportionately impact racial and language minority communities.”
“Nobody questions that states should keep voter rolls accurate and up to date,” said Adriel I. Cepeda Derieux, senior staff attorney with the American Civil Liberties Union Voting Rights Project. “The problem is when overly aggressive procedures sweep too widely to catch eligible voters who should remain on the rolls. And those excessive practices have been again and again shown to disproportionately impact racial and language minority communities.”
Voters who are erroneously removed from the rolls would have to re-register ahead of upcoming elections, though it’s not certain they would be notified in time. Voters whose registrations are in question are usually notified by mail, though given the ongoing pandemic, many people are not currently at the addresses listed on their registrations or are not able to access mail due to illness or other extenuating circumstances.
Republicans have peddled the myth of rampant voter fraud in an effort to curtail voting rights and suppress votes to their advantage. They have upped the ante in recent weeks as a number of states battle over how to make voting accessible amid the coronavirus pandemic, which has postponed some elections. On May 21, Judicial Watch sued California following Democratic Gov. Gavin Newsom’s order to completely shift November elections to vote-by-mail; it would be the first state to do so as a result of the ongoing pandemic. The Republican National Committee, the National Republican Congressional Committee, and the California Republican Party filed suit against the order several days later. “Dirty voting rolls can mean dirty elections,” Judicial Watch President Tom Fitton said in an April 28 press release on the Pennsylvania suit.
There is no evidence to bear out that claim. While there have been no recent major incidents of voter fraud, there was a case of electoral fraud committed by Republicans in North Carolina. Senate Majority Leader Mitch McConnell, R-Ky., bizarrely referenced that case when warning against potential voter fraud in other states. In that case, a political strategist working for a Republican congressional candidate was indicted on charges of orchestrating a scheme to collect and submit fraudulent absentee ballots in 2018 and 2016, including forging signatures and filling out incomplete ballots, and paying workers to collect them.
In response to increased legal activity surrounding claims of voter fraud, the Brennan Center for Justice released a report Wednesday debunking 10 myths related to the issue. The public policy group warns against using flawed lists of voter data to justify purges, citing cases in Virginia and Texas.
“This year, not surprisingly, we’ve seen a remarkable uptick in terms of litigation seeking both to remove voters from the rolls, and also to prevent certain groups of registered voters from being able to vote by mail in the primaries,” said John Powers, counsel at the Lawyers’ Committee for Civil Rights Under Law. The group recently filed to intervene in the Judicial Watch suit in Pennsylvania. He noted that these types of lawsuits tend to be frivolous. “Plaintiffs raise concerns that their vote could be diluted due to voter fraud, and then they cite a couple of random examples from out of state, and often times from many years ago — decades ago — which are highly speculative.”
There are adequate protections in place to detect and prevent rare cases of voter fraud, Powers said. “The system works,” he said. In regard to expanded vote-by-mail, fears about the potential for remote voting fraud do not “justify imposing restrictions that are gonna disenfranchise or severely burden thousands of voters in the upcoming election cycle.”
In Pennsylvania’s Middle District Court, Judicial Watch sued the Department of State, along with election officials in Bucks, Delaware, and Chester counties. The group argued that Pennsylvania has “abnormally low number of removals” under procedure mandated by the National Voter Registration Act, or NRVA, “to identify voters who have changed residence,” and cited low removal numbers as evidence that the state “is not removing inactive registrations as the law requires.” In other words, Judicial Watch is claiming that county officials are not properly maintaining voter rolls and implying without evidence that this leaves open the door to voter fraud.
The suit claims that there are up to 800,000 inactive voters in the three counties, meaning they are ineligible to vote. That would amount to more than 65 percent of all registered voters across the three counties. Judicial Watch claims that its analysis of voter registration data shows that the Pennsylvania counties “removed almost no names under NVRA procedures for identifying and updating the registrations of those who have moved.”
The right-wing group sent letters to Secretary of the Commonwealth Kathy Boockvar, who was appointed last January by Democratic Gov. Tom Wolf, and county legislators and election officials in Bucks, Chester, and Delaware Counties, asking them to provide “all documents concerning any instance(s) of voter fraud.” The complaint asks the court to compel county election offices and officials to “comply with their voter list maintenance obligations,” as well as obligations regarding record production under the NRVA.
Boockvar, a named defendant in the lawsuit, recently said “we 100% dispute” the suit’s claims.
Discussing the Pennsylvania suit on a press call earlier this month, Ezra Rosenberg, co-director of the Lawyers’ Committee for Civil Rights Under Law, said the purge would be “unlawful” and that Judicial Watch had based its litigation on “unverified, self-generated analysis that compares the voter registration data with outdated census data.”
“What additional purges does Judicial Watch want these counties to undertake? They never say clearly.”
“They cite some EAC statistics where they say the county’s only purged seventeen people, but that information is inaccurate,” said Powers, of the Lawyers Committee for Civil Rights, referencing a 2019 U.S. Election Assistance Commission report on an election administration and voting survey administered in 2018. “Judicial Watch’s own pleadings include correspondence with the county officials where they say, ‘Hey, we’ve purged tens of thousands of people over this period,’” he said. “What additional purges does Judicial Watch want these counties to undertake? They never say clearly.”
The ACLU Voting Rights Project and the group’s Pennsylvania chapter, along with the Lawyers’ Committee for Civil Rights, and Simpson Thacher & Bartlett LLP, filed a motion to intervene in the suit on May 11 on behalf of Common Cause Pennsylvania and the League of Women Voters of Pennsylvania. The groups want to get involved to help manage voter outreach and to ease the burden on state officials, who are trying to respond to the current public health crisis.
“These three counties account for eighteen percent of all reported Covid-19 cases and twenty-five percent of all virus-related deaths in the state of Pennsylvania,” Rosenberg said. Election officials are already facing increased burdens related to the coronavirus, he added, including forced closures of voter registration locations like Department of Motor Vehicles sites. “These competing concerns will obviously consume defendants’ resources and attention in ways that make it very likely that they may need the aid of organizations like ours, which are going to help defend against an unlawful purge of voters.”
Bucks, Chester and Delaware counties, which consistently vote Democratic, cover the Philadelphia suburbs to the north and southwest where Hillary Clinton got the bulk of her support in 2016. They went blue again in 2018. According to state voter registration data, the three counties account for the third, fourth, and fifth most registered voters in the state, and registered Democrats outnumber Republicans in all of them (though there are only roughly 600 more Democrats than Republicans in Chester County).
Earlier this year, under threat of a Judicial Watch lawsuit, Pennsylvania’s Allegheny County removed 69,000 names from its voter rolls. Last year, after the group threatened litigation in California and Kentucky, counties in California and Kentucky began the process of removing more than 1.8 million voters, including up to 1.5 million in Los Angeles County alone. Voters in those counties were sent notices that they would be removed from rolls if they did not vote in future elections or confirm their voting address.
In April, Judicial Watch filed a federal suit against two counties in North Carolina saying they had failed to clean voter roles and alleging that there were close to 1 million inactive voters statewide. The group also claimed that both counties have “had registration rates that were close to, at, or above 100% of its age-eligible citizenry.”
A federal judge in April ruled in Judicial Watch’s favor in a 2017 voter data suit filed in Maryland, ordering the state to produce a list of registered voters in Montgomery County, complete with birthdates. The judge wrote that the state’s defense, citing privacy concerns regarding disclosure of personal voter information, “are valid” but that because state law does not safeguard birth dates within the context of the case, disclosure is required by law. There are currently 674,752 registered voters in the county.
In the wake of coronavirus, states are largely moving to expand mail voting.“It’s a common sense step to protect the right to vote in the midst of the pandemic,” said Powers, of the Lawyers Committee for Civil Rights.
But in response, there’s been an increase in litigation by right-wing groups seeking to restrict who can vote by absentee ballot. Powers listed ongoing cases in Nevada, Michigan, California, and Virginia dealing with the question of who can and can’t vote absentee, particularly under disability and illness exceptions related to the coronavirus. Plaintiffs in the Virginia case are suing against Virginia lawmakers’ vote-by-mail expansion to allow people with coronavirus-related illness to qualify under provisions for people with disabilities and related illnesses. On Wednesday, the Texas Supreme Court issued a ruling in a case brought by Republican Attorney General Ken Paxton, who sought a court order that lack of immunity to Covid-19 could not be considered a “disability” for purposes of voting by mail. The court held that a lack of immunity was not a disability, but said election officials should take voters’ requests for a mail ballot at face value.
“States — and now, because of this litigation, courts — are being forced to make careful determinations about the right to vote and how to protect the right to vote in the middle of a pandemic,” Powers said. “You have situations where, if you restrict who can vote absentee, voters are gonna be disenfranchised.”
President Donald Trump earlier this month threatened to withhold funding from Michigan and Nevada if they went forward with plans to expand mail-in voting. Trump on Tuesday posted a tweet falsely claiming that voting by mail would ensure widespread voter fraud. It was the first tweet Twitter has ever flagged as untrue.